On Friday 26th October 2007, the Forest Bench of the SC, consisting of India’s Chief Justice K.G .Balakrishnan, Arjit Passayat (from Orissa) and S.H.Kappadia, took the decisive step of “reserving for judgement” the case of Vedanta/Orissa Mining Corporation (OMC)’s application for mining Bauxite on the summit of Niyamgiri. They made it clear they have decided the case in favour of granting Clearance for mining, against the strong recommendations against this by their own advisory body the Central Empowered Committee (CEC), and over-riding the extensively documented Objection represented yesterday by the Senior Advocate Sanjay Parikh. This means there will not be another hearing, and after 3 years of delay, commissioning detailed studies and largely ignoring them, the case is decided in favour of Vedanta. Only the details are to be worked out, a process likely to take 2-4 weeks. But reports from Lanjigarh and Muniguda last night indicate that Vedanta supporters were celebrating with fireworks, and brand new mining vehicles are already moving to the area.

What this implies is something that was obvious to anyone at the SC yesterday: that the Judges had already made up their minds before hearing all the evidence. The Judges have suppressed all proper argument and consideration about the costs of mining this area. The whole subject was dismissed by the Chief Justice’s comment near the beginning, questioning the validity of data on the negative impacts of mining by saying that it is unclear and unscientific. Attempts yesterday by both the Amicus Curiae U.U.Lalit (on behalf of the CEC) and Sanjay Parikh (on behalf of the petitioner Siddharth Nayak from Kalahandi who brought a petition on 5th October on behalf of the tribal people of Niyamgiri) to present the arguments against mining the mountain were prevented yesterday by an extraordinarily violent display of intolerance on the Judges’ part. This should make everyone question: are these Judges above the Law? In effect, they act as if they are, and the present bench is known for throwing the contemptible “Contempt of Court” rule at anyone questioning the SC’s proceedings, with a jail sentence, to stifle dissent. This needs to change if people are to have any faith in the Law and Justice situation in India. For witnesses to proceedings in Court No1 yesterday that faith was badly undermined.

The main part of the hearing yesterday was taken up with the advocate for the OMC reading out a text about “the user agency”’s plans for mining, and their assurances to give large sums of money for “tribal development,” afforestation, and a “wildlife management plan”, based on the Ministry of Environment and Forest (MoEF) report which was presented by the Attorney General at the previous hearing (5th October).

This is an outrageously flawed document, which is why Sanjay Parikh had prepared over 200 pages of documents demonstrating its errors, with several thousand pages of supplementary documentation. Before he could get up to articulate this, the Judges spent over an hour questioning the OMC advocate as well as Vedanta’s advocate Venugopal quite closely about the large sums being promised for development, and the difference between Sterlite (registered in India) and Vedanta (registered in London, Sterlite’s holding company since Dec.2003). Basically Vedanta has offered 120 million rupees per year of their profits for “tribal development” in the area. This appears very generous (equivalent to the entire sum paid by the Orissa Govt for tribal development over 19 years) until one realizes that tribal people have not asked for this or even been consulted and do not actually want this money – as the Dongria and Majhi Konds demonstrating outside the Supreme Court yesterday made very clear.

From their perspective this discussion inside the SC had mainly revolved around how much to sell their mountain for. The Government, represented here by the Judges, has, in tribal people’s view, no right to sell it, and is ignorant of its value, selling it simply out of greed. The corruption that takes place in the name of “tribal development” is notorious (amply attested e.g. in P.Sainath’s book “Everybody loves a good drought”), and comes without any democratic controls or even input from tribal people themselves in deciding what development they want. As the Adivasis on the street said: the Judges have committed a sin that sooner or later they will pay for. “What wealth (sampatti) is there here in Delhi?” they asked. “Could we plough this street?” Referring to Arjit Passayat (who played the main role suppressing discussion despite coming from Orissa) they said “Taro Karma, Amoro Dharma” – his is the action/sin, ours is the law/truth.” Tribal people have an intrinsic belief in Justice and Law, and still tend to look to the Courts to uphold its fundamental principles. This case, involving the “Lord of the Law” Niyam Raja (presiding deity of Niyamgiri in whose name the summits have been kept inviolate) is deeply symbolic for tribal people.

After a long discussion about sums and guarantees, Lalit got up, and with prompting from the CEC representative, started to put the case strongly against mining Niyamgiri, pointing out the irreversible damage it will cause, and summarizing the CEC’s excellent report of September 2005 which showed in detail (covering several hundred pages) that mining would devastate an area of outstanding forest, along with its water sources. The Amicus Curiae also showed that Nalco’s existing Bauxite reserves on Panchpat Mali, can last for 100 years at the existing rate of exploitation, and could be shared with Vedanta so as not to harm Niyamgiri, which has unparalleled ecological importance, while other other reserves like Pottangi could provide alternative sites. The Judges cut him short, after which he remained standing in dignified silence.

Almost 2 hours had passed when Sanjay Parikh stood up and presented the Objection to mining which the female advocate Indira Jai Singh had so forcefully registered at the 5th October hearing. He was cut off immediately and extremely rudely by Arjit Passayat. When Sanjay said he was representing the Dongria tribal people of Niyamgiri, Arjit shouted “How many are there? How many people do you represent ? No, I’m not going to allow this. The case is over. Your writ petition is now an Interlocutary application. Whatever you want to say, we have heard it from the Amicus Curiae. Tribal people have no place in this case.” When the 3 Judges were each handed a new copy of Mihir Jena’s book on the Dongria Konds, the Chief Justice actually threw this down in a gesture of contempt, while Arjit attacked Sanjay, viciously shouting at him to stop raising his voice (when Arjit himself had first done so saying “I am not agitated at all!”). While Sanjay was still trying to make his points and initiate a proper discussion, the Judges and whole court stood up and the Judges left.

It was then clear to everyone that they had engineered the whole discussion about sums and Sterlite-Vedanta simply to prevent any time for discussion of the Objection and its 2,000 pages of careful argument, which they had been presented with the day before. Impartial observers had assumed that this material, with its evidence assessing the real social and environmental impacts of bauxite mining, would be taken seriously by the Court. This assumption was wrong.

To summarize this material briefly and demonstrate the main errors in the MoEF report, on which the Judges are basing their Judgement:

1. It misrepresents the extent of forest and bio-diversity on top of Niyamgiri and the other Bauxite-capped mountains. Under “impact of bauxite mining on the flora” it says that all the bauxite deposits are located on plateau tops “with practically no vegetation/scanty vegetation on the mineralized zones”, which is completely untrue, even according to their own statistics (p.2) which state that nearly half the total lease area on 10 bauxite mountains is classified as Forest (67 sq kms out of 141 sq kms).

The forest on Niyamgiri’s summit is the most extensive of that on all Orissa’s bauxite mountains (some of which are mostly bare on top). The reason is that this mountain range has its own tribe, the Dongria Konds, who hold the mountain summits as sacred and have maintained a taboo on cutting trees up there for hundreds of years. Of all the mountains within the Niyamgiri range, the lease area is on the best forested, north-western range, called Niyam Dongar, which stands at 1,306 metres.

The MoEF document says that “Once permission to undertake mining operations is granted in these forest areas…., equivalent non-forest area will be taken up for compensatory afforestation & will be declared as Protected Forest This afforestation activity will ensure a stretch of green cover of indigenous, desired, fruit bearing & small timber species as per the choice of the local population” – a virtually meaningless offer since plantations bear no comparison with primary forest in terms of the complex eco-system that gets destroyed by mining. In addition reclamation of mined areas will be afforested “which will increase the forest cover in the district…. & enhance the quality of the forests” – a transparent impossibility to anyone who understands the difference between primary forest still existing on a mountain and a plantation (which on bauxite-mined areas is nearly always largely eucalyptus as this is the only tree that will grow in such disturbed and sterile ground).

2. “Impact on water regime” contains a similarly outrageous claim: “Due to Bauxite mining micro cracks are likely to develop along the walls of the hill slopes which will help seepage of water and augment ground water recharge and consequently stream flow. Hence the streams originating from the hill slopes will maintain their flow and will be benefited due to the mining operations in contrast to the pre-mining situation.” It is obvious that the cracks will speed up run-off during the rainy season and has a seriously drying effect on the streams during the hot summer months. It is well known that Bauxite has a strong water-retaining capacity, which is damaged by mining.

3. Under “impact on wildlife” the report claims there will e no serious impact, as there will be “controlled blasting during daylight hours (maximum 2 blasts per week)”, when mining experts say that a bauxite mine like this would only be viable if there were at least 3 blastings per day. No mention is made about the impact of the mining road up the Mt side (which is through deep forest), nor of the timber & hunting mafias which invariably enter along such roads, nor of the elephant reserve which this area forms part of. Evidence that elephants do come up to the summit produced by the Wildlife Institute of India is ignored, as is well-documented evidence of unique & rare species and new discoveries in Niyamgiri’s forest, such as the golden gecko.

4. The MoEF reports lists just 10 bauxite reserves on mountains in the Kalahandi-Koraput area, leaving out at least 4 major deposits, namely Deo Mali (Orissa’s highest mountain, which Nalco is trying to get permission to mine), Bapla Mali (Bat Mt, due to be mined by Utkal), Sassubohu Mali (“Mother-in-Law Daughter-in Law Mountain”, mentioned in the press within the last week as the applied-for mining site of a new project by the IMFA company), and Ghusri Mali (where several companies have applied). All these mountains have richly diverse wildlife and flora, where recent surveys have discovered new species of snakes, plants and insects, as well as bears, leopards, elephants, monitor lizards, king cobras and other endangered species.

5. On Adivasi society the document’s “Impact on Tribal Life Habitations” displays gross insensitivity and ignorance. The gist is that Vedanta’s project will offer development similar to Nalco’s bauxite-mining and refinery project, operating at Damanjodi for the last 20 years. “The Nalco bauxite mining project in Koraput Dist of Orissa has made significant positive impact on tribal life by way of providing direct & indirect employment, service & support opportunities. The envisaged bauxite mining projects in these districts will bring about economic prosperity in the area. The project authorities will be required to undertake special tribal development programmes to take care of the health, education, communications and sustainable livelihood of the tribals living around these bauxite-bearing areas. Such a scheme will reduce biotic pressure and help forest conservation.” The distortions here are truly mind-blowing. Parikh’s documents included material from the Orissa Assembly report on Nalco, Centre for Science & Environment (CSE) & the Planning Commission that shows over 73% of people in the Damanjodi area live below the poverty line, and a catalogue of environment as well as social devastation from Nalco’s activities, with employment promises not fulfilled etc etc. Michael Ross’ “Extractive Sectors & the Poor” (Oxfam 2001) documents the Resource Curse over many countries, while the CSE studies show that all the poverty indices in Planning Commsission statistics are invariably worst for mining-affected Districts. In other words, all the evidence shows that mining increases poverty rather than diminishing it, and this is particularly so in the Nalco area, cited repeated in the MoEF document as a positive example.

Also it is significant that the MoEF document makes no mention of 3 tribal villages sited on top of two of the ten bauxite-capped mountains, Siji & Kutru Malis. Also that it mentions the Kutia Kond Development Agency (which is located in Kandhmahal/Phulbani district – a different area), but NOT the DONGRIA KOND DEVELOPMENT AGENCY (DKDA), which works throughout the Niyamgiri range & is directly relevant. In other words, on tribal issues as on environmental issues, the MoEF report is full of inaccuracies and omissions, and certainly no basis on which to grant Clearance for mining Niyamgiri.

6.The safeguards in the document are completely useless & unenforceable:

GENERAL SAFEGUARDS

1. Demarcate lease area with concrete pillars.

2. Compensatory afforestation.

3. Mutation & transfer of equivalent non-forest land to Forest Dept….

4. Forestland only to be used for stated purpose [which is mining – the worst!]….

5. Rehabilitation of project-affected families.

6. As far as pos all overburden shall be used for backfilling….

7. Fencing of safety zone area….

8. Overburden dumps shall be managed scientifically….

9. NPV of forestland sought for diversion for mining….

10. The user agency shall prepare a comprehensive plan for the development of tribals in the project impact area [no mention of even making them part of the decision-making process!!!]

11. Controlled blasting only may be used in exigencies wherever needed to minimize the impact of noise on wildlife….

13. The user agency shall undertake the development of a Green Belt by way of plantation in all vacant areas within the project [this is very helpful – compensatory afforestation will almost certainly be predominantly eucalyptus, jatropha, acacia etc, whatever mention has been made of indigenous species.]

CASE SPECIFIC SAFEGUARDS

i. Reclamation of mines to be carried out concurrently & monitored by forest dept…

7. The data on the externality cost of bauxite mining and the aluminium industry finds no mention in the MoEF document. Briefly, according to documents from the Wuppertal Institute of resource management (Germany) & UK Govt figures, producing one ton of aluminium consumes over 1,000 tons of water, and 85 tons of CO2, which imposes a cost estimated at $1,700 (per ton of aluminium) on the local environment where it is produced. Saying that aluminium is a “green metal” (as the attorney general claimed on 6th September, on the basis that aluminium use saves trees) is a gross distortion.

Vedanta was listed in the London Stock Exchange on 5th Dec 2003 with the help of J.P.Morgan (US) as sponsor and financial advisor, along with HSBC, Cazenove (UK), Citigroup (US), ICICI (US), and Macquarie (Australia), & subsequent major investments from Barclays (UK), Deutsche Bank (Germany) and numerous other foreign financial institutions. The comprehensive report which J.P.Morgan commissioned for the London listing (dated Dec 2003) mentions the Lanjigarh refinery & Niyamgiri mine as a principal project, while documenting the inevitable environmental costs in some detail – unlike the MoEF report. Among these impacts cited in the J.P.Morgan report are the polluting conditions in which Red Mud toxic waste and fly ash are stored at Vedanta/Balco’s Korba refinery, significant in light of recent news that within a month of starting production, the Lanjigarh refinery has already polluted the Bansadhara river near its source from Niyamgiri, where it has been declared unfit for drinking and use by the villagers who have always used it.

This carelessness, as well as the oppression of tribal protestors, the corruption and “briberization” evident all around Lanjigarh now, represent just the first stages of this mining project’s costs to Orissa’s environment and society, including future generations, while the profits are set to accumulate with the foreign banks and metal traders.

The Objection registered on 5th October, whose hearing was suppressed on 26th, was made on the grounds of the fundamental rights of tribal people to their religion and its structures, which include Niyamgiri. The aluminium industry is being imposed in Orissa with a ruthlessless and insensitivity towards tribal people amply documented in Robert Goodland’s report on the Utkal project in Kashipur, and several carefully researched human rights reports from the area by the PUCL etc. The way tribal people’s interests and voices are being marginalized was all too evident yesterday, and Sanjay Parikh admitted afterwards he felt himself treated like a tribal in the way Arjit had humiliated and silenced him.

To summarize: of all Orissa’s Bauxite-capped Mountains, Niyamgiri is the last that should be mined, due to the thick primary saal forest covering at least 80% of its summit and its spiritual significance to the Dongria, whose religious taboo on cutting this forest has maintained it in a uniquely unspoilt condition. There are alternative Bauxite reserves within Orissa, which could and should be granted, according to the OMC’s original agreement with Sterlite, in preference to Niyamgiri. By giving Clearance for Niyamgiri, the SC is responible for sending all the worst signals to mining companies and investors: namely that India’s best environmental assets are for sale if enough money is given to the right people.

Surya Shankar Dash

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